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Plenty of time yet to hold local Government elections in September 2020

With the lifting of restrictions across the State there is plenty of time to now press ahead for a September 2020 local government election. On the 25th of March the NSW Minister for Local Government, Shelly Hancock said "The NSW Government has made the regrettable decision to postpone the September local government elections for 12 months in the face of the COVID-19 pandemic."

"The decision to postpone them has not been taken lightly but is necessary to ensure the health and safety of voters, NSW Electoral Commission staff and election candidates."

"The decision follows Parliament passing amendments to the Local Government Act to provide me with the power to postpone the elections."

The key sentence here is "to provide me with the power to postpone the elections". The FACT IS that while the Minister for Local Government says "The NSW Government has made the regrettable decision to postpone" they HAVE NOT actually officially actioned that meaning they could actually change their mind today and reinstate the original September 2020 elections. Offering clarity around the issue Mr John Davies, Manager, Council Governance for the Office of Local Government explained in a letter, responding on behalf of the Minister, dated May 21st 2020 saying in full: "Thank you for your email of 18 May 2020 to the Minister for Local Government, the Hon. Shelley Hancock MP, about the postponement of the local government elections. I have been asked to respond on behalf of the Minister. The Local Government Act 1993 has been amended to confer on the Minister, a time-limited power to postpone council elections. The amendment (section 318B(1)(a1)) operates for a limited period of 12 months. It allows the Minister, by an order published in the Gazette, to postpone elections for 12 months from the date of the order where the Minister believes that, having regard to the COVID-19 pandemic, it is reasonable in the circumstances to order the postponement. The order may be extended for an additional period to 31 December in the year after the order is made. While an order is yet to be made under section 318B, the Minister has announced that the next local government elections will be postponed in response to the COVID-19 pandemic. The decision to postpone the elections, which has been made on the advice of the NSW Electoral Commissioner, has not been taken lightly but is necessary to ensure the health and safety of voters, NSW Electoral Commission staff and election candidates. I hope this information will clarify the situation. Key to the response above is the element "While an order is yet to be made under section 318B" Note that The amendment (section 318B(1)(a1)) allows the Minister, by an order published in the Gazette, to postpone elections for 12 months from the date of the order . With that in mind and with the continued lifting of restrictions around Covid-19 by The Premier it is now clear that the Minister can NO LONGER believe that, "having regard to the COVID-19 pandemic, it is reasonable in the circumstances to order the postponement." Nor is it any longer relevant that, as stated by Minister Hancock on March 25th "The decision to postpone them has not been taken lightly but is necessary to ensure the health and safety of voters, NSW Electoral Commission staff and election candidates." As the Minister did NOT proceed with an Order as required (section 318B(1)(a1)) "the regrettable decision to postpone the September local government elections for 12 months in the face of the COVID-19 pandemic" was simply an informal decision that can be overturned. But will the NSW Liberal Government do it? From Monday 1 June 2020, the following will be allowed:

Rules that continue to apply include

There is little doubt that polling booths could work within the above official NSW guidelines. In light of the rapid changes that forecast domestic air travel, groups of 100 and the return of many of the activities such as sports in coming weeks and months the original caution applied by the Minister in her March 25th, 2020 announcement simply doesn't apply any longer. Jim Bright, a local Labor supporter, has written to The Beagle suggesting why the Minister has yet to sign the formal order deferring the scheduled 2020 LG elections.  He writes "The Local Government Act was amended by the NSW Parliament in March 2020 to empower the Minister for Local Government to make an official order legally postponing this year's elections because of the of Covid-19 restrictions.

"In going about the necessary legislative changes, it seems that, rather than creating a new part to the Act to specifically address this particular Covid-19 situation, the Government decided to simply (and temporarily) graft a couple of sentences onto some existing provisions in the Act.  (Those existing provisions (in sections 318A-318C) relate to the Minister's power to postpone a particular council's elections in situations where that council might be under formal investigations for some reason.)"

Mr Bright added "A small problem with what they chose to do (which they might or might not have realised in advance) is that the postponement power contained in s.318B only allows the Minister's postponement order to delay the elections for up to twelve months from the date that the order is signed.  (For example, had the Minister signed the order in March 2020, the latest date for the postponed election would have been in March 2021.)  So since, for whatever reason, the Government wants to (and has announced that it will) defer the elections to September 2021, it has a bit of a legal process problem.

"There are a couple of ways that the Minister can probably get around this problem." offers Mr Bright.


Option A would be for her to sign an order (say) today deferring the September 2020 election to May 2021 (ie twelve months from now) and then, sometime on or after September this year, to cancel that order (as is allowable) and to sign a new order specifying a date in September 2021.  (That's a bit messy but perfectly legal.)

Option B  might be for her to simply not sign the necessary order until (say) just before the scheduled 12 September 2020 election date and for that order to specify (say) Saturday 4 September 2021 as the new date for the elections.  But that would obviously be cutting things a bit too fine and would require the NSW Election Commission not to commence a number of processes (eg calling for nominations) that legally they should have done by then. 

Jim concludes "Therefore my guess is that something along the lines of Option A is under consideration by OLG - and is why no official postponement order has yet been signed by the Minister."




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